Commonwealth v. Rodriquez

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Present: IRELAND
• Citation: Commonwealth v. Rodriquez, 461 Mass. 100, 958 N.E.2d 518 (Mass. 2011)
• Decision Date: 12 December 2011
• Docket Number: SJC–10828.
• Parties: COMMONWEALTH v. Luis RODRIQUEZ.1

461 Mass. 100

958 N.E.2d 518

COMMONWEALTH

v.Luis RODRIQUEZ.1

SJC–10828.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Oct. 7, 2011.Decided Dec. 12, 2011.

Kenneth I. Seiger for the defendant.

Casey E. Silvia, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, & DUFFLY, JJ.

IRELAND, C.J.

On February 9, 2010, a jury convicted the defendant, Luis Rodriquez, of murder in the first degree by reason of extreme atrocity or cruelty.² Represented by new counsel following his conviction, the defendant argues error in (1) the denial of his motions for a required finding of not guilty; (2) the judge's instructions to the jury; and (3) the exclusion of evidence of prior violent conduct by the victim. In addition, the defendant asserts that we should exercise our power under G.L. c. 278, § 33E, to reduce the verdict to a lesser degree of guilt. We affirm the defendant's conviction and discern no basis to exercise our authority under G.L. c. 278, § 33E.

1. Background. The jury could have found the following facts. After an evening of parties and drinking, the defendant and his friend, Luis Gonzalez, accompanied by Edwin Torres,³ all of whom were “buzzed,” decided to head home. It was about 6:30 a.m. on Saturday, November 29, 2008. On their way home, the men walked through a parking lot of a store located at the intersection of Westford and Chelmsford Streets in Lowell. The victim, Mazen Alwarad, worked at the store as a clerk. His English was poor.

At about 6:41 a.m., the victim went outside the store, to the left of its entrance, to smoke a cigarette. Shortly thereafter, the defendant walked over to the victim and asked him for a cigarette and a light, which the victim provided.⁴ The defendant said something to the victim about his (the victim's) inability to speak English.⁵ Hearing this, Gonzalez told the defendant, “Let's go.” ⁶ Instead, the defendant turned to a patron who was entering the store and remarked that the victim was “talking shit” and that he, the defendant, did not “respect” the victim. After verbally goading the victim,^7,8 the defendant punched at the victim and hit him.⁹ The victim punched back and a fistfight ensued. During the brawl, which only lasted a couple of minutes, the defendant repeatedly stabbed the victim. At one point, the victim fell on top of the defendant and someone (no one could say who) shouted, “Stop, stop.”

The fight appeared to end abruptly. The victim got up and went into the store, as recorded by an interior surveillance camera, at 6:47 a.m. Leaving a trail of blood behind him, he headed to the bathroom and called for the other clerk. The clerk found the victim in the bathroom and observed blood on his face. The clerk went back to the register area of the store, activated a silent alarm, and asked a customer to telephone for help.

As the victim was heading into the store, the defendant stood up, waived an object in the air, and shouted, “I still got.” He then joined Gonzalez and Torres. The defendant had blood on his nose, but no other visible injuries. He held a knife that had blood dripping from it and twice stated to Gonzalez, “I got him.” The defendant laughed and the three men walked away.

Lowell police officers arrived at the store around 6:49 a.m. The victim was lying on the bathroom floor “covered” in blood and bleeding profusely. Paramedics brought him to a landing zone, where he was transported by a helicopter to a Boston hospital. There he died as a result of multiple stab wounds to the torso and extremity with perforation of the femoral vein. ^10,11

A few days later, on December 3, 2008, police officers located the defendant at his mother's house. He was hiding underneath a table in the basement with a jacket covering his body with the exception of his feet. As soon as he got to his feet, the defendant blurted out, “I wasn't there,” and said that he had been in New Hampshire with his girl friend. The defendant had bruising under his eyes and his nose was swollen; he had minor cuts and scrapes on his hands. One of the officers administered Miranda warnings to the defendant, after which the defendant said he would speak with them. When asked how his injuries had occurred, the defendant said that he had fallen. The defendant was transported to an interview room at a police station, where he climbed up onto a radiator and tried to open a window.

During the execution of a search warrant of the defendant's mother's home, police recovered newspapers that contained articles about the victim's stabbing. They also found a receipt for a hotel room in New Hampshire that was rented in the defendant's name from November 30 to December 4, 2008.

The defendant did not testify. His trial counsel argued that although the stabbing was intentional and unlawful, the defendant acted in the heat of passion as a result of the fistfight that mitigated the crime from murder to manslaughter. The defense relied on the testimony of a store patron, Philip Jefferson, see note 8, supra, emphasizing that the victim did nothing to avoid the conflict.

2. Sufficiency of the evidence. We reject the defendant's contention that his motions for a required finding of not guilty were improperly denied because the evidence was insufficient to establish that the stabbing was committed with extreme atrocity or cruelty. We conclude that the Commonwealth's evidence, when considered under the governing standard, Commonwealth v. Latimore, 378 Mass. 671, 676–677, 393 N.E.2d 370 (1979), was sufficient to warrant a finding by the jury beyond a reasonable doubt that the defendant was guilty of murder in the first degree based on extreme atrocity or cruelty.

In determining whether a murder was committed with extreme atrocity or cruelty, juries consider the factors set forth in Commonwealth v. Cunneen, 389 Mass. 216, 227, 449 N.E.2d 658 (1983) ( Cunneen ). See Commonwealth v. Anderson, 445 Mass. 195, 200, 834 N.E.2d 1159 (2005). Under the criteria established in Cunneen, supra, a jury must find the presence of one or more of the following factors to convict a defendant of murder in the first degree based on extreme atrocity or cruelty: “(1) whether the defendant was indifferent to or took pleasure in the victim's suffering; (2) the consciousness and degree of suffering of the victim; (3) the extent of the victim's physical injuries; (4) the number of blows inflicted on the victim; (5) the manner and force with which the blows were delivered; (6) the nature of the weapon, instrument, or method used in the killing; and (7) the disproportion between the means needed to cause death and those employed.” Commonwealth v. Linton, 456 Mass. 534, 546 n. 10, 924 N.E.2d 722 (2010). See Commonwealth v. Cunneen, supra.

The defendant argues that the Cunneen factors were not established because the defendant's statement, “I got him,” after the stabbing suggested only that he was glad to have prevailed in the fight. This determination was for the jury to decide and certainly could have been construed differently as there was sufficient evidence that the defendant took pleasure in having stabbed the victim. See Commonwealth v. Smith, 449 Mass. 12, 19, 864 N.E.2d 1194 (2007); Commonwealth v. Anderson, supra at 202, 834 N.E.2d 1159. See also Commonwealth v. Martino, 412 Mass. 267, 272, 588 N.E.2d 651 (1992) (weight and credibility of evidence is “a matter wholly within the province of the jury”). In addition, the defendant argues that the stabbing was not disproportionate because the victim was able to walk away after being stabbed and because the pathologist who performed the autopsy testified that the wounds could have been inflicted from the combination of two individuals moving toward each other, as in a fight. The jury rejected his view of the evidence. There was sufficient evidence from which the jury could have concluded that the defendant's attack of the victim was brutal and disproportionate to what was needed to bring about death. The defendant stabbed an unarmed man seven times with “significant” force. Not only did he stab the victim in his chest four times, but he also stabbed the victim's testicle, all of which, according to the pathologist, likely would have caused the victim to experience pain. Because the victim was able to walk away after the stabbing (leaving a trail of blood behind him), the victim was conscious for some time thereafter, and the jury could have reasonably concluded that he did in fact suffer from those injuries. See Commonwealth v. Noeun Sok, 439 Mass. 428, 431, 788 N.E.2d 941 (2003) (concluding there was sufficient evidence of extreme atrocity or cruelty where victim was conscious after stabbing and experienced severe pain); Commonwealth v. Freiberg, 405 Mass. 282, 290–291, 540 N.E.2d 1289, cert. denied, 493 U.S. 940, 110 S.Ct. 338, 107 L.Ed.2d 327 (1989) (finding sufficient evidence of extreme atrocity where victim suffered from injuries inflicted by defendant using “very severe degree of force”). That there were not, as in other cases, fifty-eight or ninety-eight stab wounds here is not relevant. While we have held that murder by extreme atrocity or cruelty can occur even if death results from a single blow, this was not a single blow, but rather repeated blows to areas in the body that were likely to cause serious injury and pain. See, e.g., Commonwealth v. Glass, 401 Mass. 799, 803, 519 N.E.2d 1311 (1988). See also Commonwealth v. Simmons, 419 Mass. 426, 427–428, 646 N.E.2d 97 (1995) (murder committed with extreme atrocity or cruelty where victim died from eleven stab wounds); Commonwealth v. Libby, 405 Mass. 231, 236–237, 540 N.E.2d 154 (1989) (evidence sufficient to prove extreme atrocity or cruelty where defendant stabbed victim nine times). There was ample evidence for the jury to find that the defendant accomplished the killing with extreme atrocity or cruelty.

3. Jury instructions. a. Supplemental instruction...